LOS FRESNOS CONSOLIDATED INDEPENDENT SCHOOL DISTRICT v. ENRIQUE RIVAS, JR. AND ELSA RIVAS, INDIVIDUALLY AND AS NEXT FRIENDS OF FELIX RIVAS, MAGDALENA RIVAS, AND VALENTIN RIVAS, MINOR CHILDREN--Appeal from 107th District Court of Cameron County

NUMBER 13-04-168-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

LOS FRESNOS CONSOLIDATED

INDEPENDENT SCHOOL DISTRICT, Appellant,

v.

ENRIQUE RIVAS, JR. AND ELSA RIVAS, INDIVIDUALLY

AND AS NEXT FRIENDS OF FELIX RIVAS,

MAGDALENA RIVAS AND VELENTIN RIVAS, Appellees.

On appeal from the 107th District Court

of Cameron County, Texas.

MEMORANDUM OPINION

Before Justices Yanez, Castillo, and Garza

Memorandum Opinion by Justice Castillo

This interlocutory appeal stems from a suit by Enrique Rivas, Jr. and Elsa Rivas, Individually and as next friends of Felix Rivas, Magdalena Rivas, and Valentin Rivas ("the Rivases") against Los Fresnos Consolidated Independent School District (the "School District") and Raquel F. Fortuna[1] for negligence resulting in a bus accident in which Felix, Magdalena, and Valentin were allegedly injured. The School District appeals the trial court's denial of its plea to the jurisdiction. We affirm the judgment of the trial court in part and reverse in part.

I. Background

The Rivases alleged that on or about August 27, 2001, Felix, Magdalena, and Valentin Rivas were passengers on a school bus driven by Raquel Fortuna. At some point, the bus rolled onto its side. The Rivases allege that the children suffered serious injuries in the accident. In their petition, the Rivases sue based on claims of (1) negligence of both Fortuna and the School District, (2) negligent entrustment on the part of the School District, and (4) negligent hiring and retention, also on the part of the School District. Additionally, the Rivases claim that the School District is liable under respondeat superior. The Rivases request actual and exemplary damages.

In their first amended answer, the School District and Fortuna denied the Rivases' allegations and asserted the affirmative defense of governmental immunity. The School District and Fortuna later filed a plea to the jurisdiction, moving the trial court to dismiss the Rivases' claims for lack of subject matter jurisdiction. The plea to the jurisdiction stated that, as a governmental unit, the School District is immune from tort liability unless the Legislature has waived immunity. Further, the School District and Fortuna contended that it was the Rivases' burden to affirmatively demonstrate (1) lack of immunity for the School District and Fortuna, and (2) that the trial court has jurisdiction over their claims. The plea goes on to state that the School District's monetary liability is limited to $100,000, and that the School District and Fortuna's insurer had already paid claimants involved in the bus accident sums in excess of that amount. Attached to the plea to the jurisdiction is the affidavit of Connie Dedmon, the claims adjuster for the insurance company utilized by the School District and Fortuna. Dedmon states that "To date, Fortuna, through her insurer, has paid to claimants in excess of $100,000 for damages alleged to be caused by an alleged act or omission by Fortuna in the course and scope of her employment with the Los Fresnos Consolidated Independent School District, while employed as a public servant."

The Rivases responded to the plea to the jurisdiction, stating that subject matter jurisdiction under the Texas Torts Claims Act had been invoked. The response also questioned the School District and Fortuna's argument that the School District's liability is foreclosed since its employee's liability has allegedly been exhausted. On March 25, 2004, the trial court denied the School District and Fortuna's plea to the jurisdiction. It is from that decision that the School District now appeals.

II. Jurisdiction

Our initial inquiry is always whether we have jurisdiction over an appeal. Garcia v. Comm'rs Court of Cameron County, 101 S.W.3d 778, 779 (Tex. App.BCorpus Christi 2003, no pet.) (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993)). We are obligated to determine, sua sponte, our own jurisdiction. Garcia, 101 S.W.3d at 779 (citing N.Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678 (Tex. 1990) (per curiam)). Jurisdiction of a court is never presumed. Garcia, 101 S.W.3d at 783. Our jurisdiction is established exclusively by constitutional and statutory enactments. Id. at 784; see Tex. Civ. Prac. & Rem. Code Ann. ' 51.014 (Vernon Supp. 2004-05). Unless one of the sources of our authority specifically authorizes an interlocutory appeal, we only have jurisdiction over an appeal taken from a final judgment. Garcia, 101 S.W.3d at 784. Absent an express grant of authority, we do not have jurisdiction to review an interlocutory order. Id. If the record does not affirmatively demonstrate our jurisdiction, we must dismiss the appeal. Id.

The Texas Civil Practice and Remedies Code grants us jurisdiction to hear an interlocutory appeal from an order granting or denying a plea to the jurisdiction by a governmental unit. See Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(a)(8) (Vernon Supp. 2004 05). It is undisputed that the School District is such a governmental unit. See id. ' 101.001(3)(B) (Vernon 2005). Accordingly, we conclude that we have jurisdiction to consider the issues raised on appeal.

III. Issue on Appeal

The School District's brief states that the ultimate issue to be decided on appeal is whether the trial court erred in denying the School District and Fortuna's plea to the jurisdiction. The School District includes in this question the following primary issues: (1) whether Fortuna lacks "personal liability" to appellees under these circumstances by operation of Texas Civil Practice and Remedies Code section 108.002, (2) whether the School District may assert Fortuna's defense as a basis for its plea to the jurisdiction, and (3) whether the School District, as Fortuna's employer, is immune because Fortuna cannot be personally liable to appellees.

A. Standard of Review

This appeal is strictly limited to our review of the trial court's ruling on the plea to the jurisdiction. Tex. Civ. Prac. & Rem. Code Ann. '51.014(a)(8) (Vernon Supp. 2004-05). A plea to the jurisdiction is the vehicle by which a party contests the trial court's authority to determine the subject matter of the cause of action. State v. Benavides, 772 S.W.2d 271, 273 (Tex. App.BCorpus Christi 1989, writ denied). The plaintiff bears the burden of alleging facts affirmatively demonstrating the trial court's jurisdiction to hear a case. Tex. Ass'n of Bus., 852 S.W.2d at 446; Mission Consol. Indep. Sch. Dist. v. Flores, 39 S.W.3d 674, 676 (Tex. App.BCorpus Christi 2001, no pet.). A trial court must not weigh the merits of the case, but instead must consider only the pleadings and evidence pertinent to the jurisdictional question. County of Cameron v. Brown, 80 S.W.3d 549, 554-55 (Tex. 2002) (citing Tex. Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex. 2001)). In doing so, the trial court must construe the plaintiff's pleadings liberally in favor of jurisdiction, Peek v. Equip. Serv. Co., 779 S.W.2d 802, 804 (Tex. 1989), and must take all factual allegations pled as true, unless the defendant pleads and proves that the allegations were fraudulently made in order to confer jurisdiction. Cont. Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 449 (Tex. 1996). If a plaintiff pleads facts that affirmatively demonstrate an absence of jurisdiction and such defect is incurable, immediate dismissal of the case is proper. Peek, 779 S.W.2d at 804-05; City of Austin v. L.S. Ranch, 970 S.W.2d 750, 753 (Tex. App.BAustin 1998, no pet.). However, the mere failure of a petition to state a cause of action does not show a want of jurisdiction in the court. Bybee v. Fireman's Fund Ins. Co., 331 S.W.2d 910, 917 (1960). If the plaintiff's pleadings are insufficient to demonstrate the court's jurisdiction, but do not affirmatively show incurable defects in jurisdiction, the proper remedy is to allow the plaintiff an opportunity to amend before dismissing. Brown, 80 S.W.3d at 545-55; Peek, 779 S.W.2d at 804-05.

On appeal, because the question of subject matter jurisdiction is a legal question, we review the trial court's ruling on a plea to the jurisdiction under a de novo standard of review. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). To determine whether the plaintiff has affirmatively demonstrated the court's jurisdiction to hear the case, we consider the facts alleged by the plaintiff, and to the extent it is relevant to the jurisdictional issue, the evidence submitted by the parties. White, 46 S.W.3d at 868. Like the trial court, we must construe the pleadings in the plaintiff's favor and look to the pleader's intent. Brown, 80 S.W.3d at 545-55. Our task is not to determine the merits of the case but rather to examine the petition, taking as true the facts pled, and determine whether those facts support jurisdiction in the trial court. Baston v. City of Port Isabel, 49 S.W.3d 425, 427-28 (Tex. App.BCorpus Christi 2001, pet. denied).

B. Law on Statutory Construction

This case is based on provisions of the civil practice and remedies code, and specifically the Texas Tort Claims Act. Tex. Civ. Prac. & Rem. Code Ann. ' 101.001-.109 (Vernon 2005). Our primary objective when construing a statute is to ascertain and give effect to the Legislature's intent. See McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003); Kroger Co. v. Keng, 23 S.W.3d 347, 349 (Tex. 2000). In discerning that intent, we begin with the plain and common meaning of the statute's words. McIntyre, 109 S.W.3d at 745. In construing a statute, a court may consider the (1) object sought to be obtained; (2) circumstances under which the statute was enacted; (3) legislative history; (4) common law or former statutory provisions, including laws on the same or similar subjects; (5) consequences of a particular construction; (6) administrative construction of the statute; and (7) title (caption), preamble, and emergency provision. Tex. Gov't Code Ann. ' 311.023 (Vernon 1998). We must read the statute as a whole and not just isolated portions. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). If the statutory language is unambiguous, we must interpret it according to its terms, giving meaning to the language consistent with other provisions in the statute. See McIntyre, 109 S.W.3d at 745. Additionally, if the statutory text is unambiguous, a court must adopt the interpretation supported by the statute's plain language unless that interpretation would lead to absurd results. Tex. Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 177 (Tex. 2004). We presume that the Legislature would not do a useless act. Webb County Appraisal Dist. v. New Laredo Hotel, 792 S.W.2d 952, 954 (Tex. 1990).

C. Pleading Sovereign Immunity

In their plea to the jurisdiction, the School District and Fortuna argued that it is the plaintiff's burden to affirmatively demonstrate the lack of immunity, and therefore jurisdiction over plaintiff's claims. The School District and Fortuna went on to assert that "[b]ecause it is clear this Court lacks subject matter jurisdiction over Plaintiff's claims, dismissal is clearly appropriate."

In reviewing the Rivases' petition, we note they alleged the following:

Defendant LOS FRESNOS CONSOLIDATED INDEPENDENT SCHOOL DISTRICT may be held to answer in a court of law for the occurrence just described because the plaintiffs' claims involve the use of a motor vehicle, for which immunity has been waived. Therefore, LOS FRESNOS C.I.S.D. may be sued.

1. Immunity-the Law

"Mere reference to the Tort Claims Act does not establish the state's consent to be sued and thus is not enough to confer jurisdiction on the trial court." State Dep't of Crim. Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). The Tort Claims Act provides a limited waiver of sovereign immunity, allowing suits to be brought against governmental units only in certain, narrowly defined circumstances. Id. (citing Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998) ("the Legislature intended the waiver in the Act to be limited")). Therefore, "we must look to the terms of the Act to determine the scope of its waiver," Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex. 1996), and then must consider the particular facts of the case before us to determine whether it comes within that scope. Id.

The Texas Torts Claims Act states that a "governmental unit in the state" is liable for personal injury or the negligence of "an employee acting within his scope of employment" if the personal injury arises from the "operation or use of a motor-driven vehicle" and the employee "would be personally liable to the claimant according to Texas law." Tex. Civ. Prac. & Rem. Code Ann. ' 101.021 (Vernon 2005). Section 101.051[2] indicates that the waiver of immunity does not apply to a school district except as to motor vehicles. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.051 (Vernon 2005) (emphasis added).

2. Analysis

The Rivases allege that, on the date of the accident, the Rivas children were passengers on the school bus operated by Fortuna. The Rivases allege that Fortuna operated the bus in a negligent manner, violating the duty she owed the passengers on the bus in that she failed to exercise ordinary care in the operation of a motor vehicle. They also cite the applicable section of the civil practice and remedies code that waives statutory immunity under those circumstances. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.021 (Vernon 2005) (providing for liability for injuries arising from the operation or use of a motor-driven vehicle). The Rivases cite authority allowing a school district to be sued after a motor vehicle accident such as this one. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.051 (Vernon 2005) (stating that the waiver of immunity contained in the Texas Tort Claims Act does not apply to school districts except as to motor vehicles). We conclude that the Rivases alleged facts sufficient to establish waiver of the School District's immunity. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.021 (Vernon 2005).

D. Official Immunity of Fortuna

Additionally, the School District asserts that Fortuna is protected from liability

by official immunity, is not personally liable to the claimant, and therefore, the School District should retain its immunity.

A governmental employee is entitled to official immunity (1) for the performance of discretionary duties, (2) within the scope of the employee's authority, (3) provided the employee acts in good faith. Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000) (citing City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994)). Discretionary duties are those requiring personal deliberation, decisions, and judgment. See Chambers, 883 S.W.2d at 654. Ministerial duties are those in which the law prescribes and defines the duties to be performed with such precision and certainty that nothing is left to the discretion of the actor. See id.

The Rivases contend that Fortuna cannot assert official immunity, and therefore, the School District's liability is not capped by section 108.002. They point out that a key element of official immunity is that the employee be performing a discretionary duty when the cause of action arises. See Clark, 38 S.W.3d at 580. Driving a bus is not a discretionary duty. See Los Fresnos Consol. Indep. Sch. Dist. v. Southworth, 156 S.W.3d 910, 917 (Tex. App.BCorpus Christi 2005) (citing Garza v. Salvatierra, 846 S.W.2d 17, 22-23 (Tex. App.BSan Antonio 1992, writ dism'd w.o.j.) (holding discretion used by bus driver was traffic judgment, not governmental judgment)). Therefore, we conclude that Fortuna cannot assert official immunity, and the School District cannot rely on her official immunity in order to retain its sovereign immunity. We conclude that the trial court did not err in denying the School District and Fortuna's plea to the jurisdiction as to the Rivases' claims stemming from Fortuna's alleged negligence in operating the school bus.

E. Limits to Liability

The School District further asserts that, even if the Rivases identified the Texas Tort Claims Act as a source of waiver of immunity, the School District's liability can be no more than Fortuna's, because her alleged actions form the basis of the claim. The School District argues that because the carrier for the School District and Fortuna had already paid in excess of $100,000 for damages to claimants since the accident, and because Fortuna's status as a "public servant" limits her personal liability to $100,000, the Rivases' claims against Fortuna are barred.

1. The Law

The Texas Tort Claims Act sets forth limits as to the liability of units of local government and public servants. Section 101.021 states that the governmental unit can be liable if the employee would be personally liable to the claimant according to Texas Law. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.021 (Vernon 2005). Section 108.002 states that a public servant is not personally liable for damages in excess of $100,000 arising from personal injury, death or deprivation of a right, privilege, or immunity if the damages are a result of an act or omission by the public servant in the course and scope of the public servant's office, employment, or contractual performance for or service on behalf of a state agency, institution, department, or local government. See Tex. Civ. Prac. & Rem. Code Ann. ' 108.002 (Vernon 2005). Section 101.023(b) states that "except as provided by subsection (c), liability of a unit of local government under this chapter is limited to money damages in a maximum amount of $100,000 for each person and $300,000 for each single occurrence for bodily injury or death . . . ."[3] Tex. Civ. Prac. & Rem. Code Ann. ' 101.023(c) (Vernon 2005).

2. Analysis

Section 108.002 applies in situations where an employee may be personally liable. See Tex. Civ. Prac. & Rem. Code Ann. ' 108.002 (Vernon 2005). In this case, the Rivases do not name Fortuna in her individual capacity. In fact, their last live pleading states that "[a]t all times material to this cause of action, defendant FORTUNA was the employee, agent, servant, and/or representative of defendant LOS FRESNOS C.I.S.D. and was acting in the course and scope of said company." Therefore, the School District cannot rely on that section as a basis for their argument.[4]

F. Negligent Hiring, Retention and Entrustment

The Rivases allege that the School District "was negligent in hiring and/or retaining FORTUNA as an employee, agent, and/or representative, when it was apparent that Fortuna was not qualified and/or competent for her position," and that the School District "negligently entrusted its vehicle to FORTUNA . . . therefore [the School District]'s allowing the vehicle in question to come into the use, custody and control of FORTUNA constitutes negligent entrustment." The Texas Torts Claims Act waives liability as to personal injury proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if the personal injury arises from the operation or use of a motor-driven vehicle, or motor-driven equipment. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.021 (Vernon 2005). (emphasis added). Texas courts have construed that to mean the Tort Claims Act waives sovereign immunity in the "use of publicly owned automobiles." County of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex. 2002) (quoting Tex. Dep't of Transp. v . Able, 35 S.W.3d 608, 611 (Tex. 2000)). Negligent hiring, retention or entrustment does not constitute "use of a publicly owned automobile." Nowhere have we found, nor have the Rivases directed our attention to, any statutory waiver of immunity for negligent hiring, negligent retention, or negligent entrustment on the part of a governmental unit. We conclude that the Rivases have failed to properly allege facts to demonstrate how the School District's alleged negligent hiring, retention and entrustment could have caused the children injury from the operation or use of a motor-driven vehicle. Therefore, we reverse that portion of the trial court's judgment denying the School District and Fortuna's plea to the jurisdiction as to these claims.

IV. Conclusion

We reverse and remand the portion of the judgment denying the plea to the jurisdiction as to the Rivases' claims of negligent hiring, retention, and entrustment. We affirm the portion of the judgment denying the plea to the jurisdiction as to the remainder of the Rivases' claims, those based on the alleged actions of Fortuna.

ERRLINDA CASTILLO

Justice

Memorandum Opinion delivered and filed

this the 18th day of August, 2005.

[1] While Fortuna is a party to the underlying suit and has not been non-suited, the School District alone appeals the denial of the plea to the jurisdiction.

[2] Unless otherwise indicated, all sections referred to are contained in the Texas Civil Practice and Remedies Code.

[3] Subsection "c" relates to the liability for a municipality, inapplicable here. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.023(c) (Vernon 2005).

[4] Because we make our decision based upon the fact that the Rivases did not sue Fortuna in her personal capacity, we do not address the validity of the School District's argument that by reading section 108.002 together with section 101.023, the School District could limit its liability in the manner it asserts.